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The Era of Legal Marijuana: A Challenge for Employers

By: Deb Rourke, Commercial Risk Specialist
Twenty-nine states and the District of Columbia have legalized the use of marijuana in some form, whether it be for medical use, recreational use, or both. If you are an employer who has not yet implemented a drug-free workplace and testing policy, it’s advisable for you to do so.

Challenges for Employers
Marijuana remains classified as a Schedule I drug under the federal Controlled Substances Act, which means that it’s illegal under federal law, but states have enacted their own laws around its use.
It is important for employers to understand how employee protections regarding marijuana can vary from state to state and whether or not they have a duty to accommodate those individuals.

Employee Protections
Employees have some protections and legal rights in the workplace against various forms of discrimination and unfair employment practices. These laws can be vague and inconsistent, making it a challenge for employers to understand their obligations.

Know the Laws and Establish Clear Policies
Employers should educate themselves on the respective state laws in the jurisdictions in which they conduct business. Having a clearly written, detailed drug-free workplace and testing policy is highly recommended and should comply with all applicable state, federal and local laws which should summarize the employer’s expectations and consequences as appropriate.

In Sum
Currently, employers in all 50 states do not have to accommodate an employee working ‘under the influence’ of marijuana or their use of marijuana while on-duty. This is new territory for employers to navigate and as such, they are advised to consult with employment counsel for assistance when dealing with medical marijuana or other drug-related matters in the workplace.

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